What a lecture in Kyiv teaches us about healthcare in the Netherlands

It is early March when Den Exter addresses a room of students and physicians at Kyiv Medical University. Health law scholars from Erasmus School of Law have maintained contact with this university for some time, delivering guest lectures on a regular basis. Halfway through this session, the air raid alarm sounds. The audience calmly moves to an underground space and continues the session. It is circumstances like these that underscore the urgency of the subject. But, Den Exter emphasises, his argument applies just as much to Rotterdam as to Kyiv.

It happens often, but rarely gets discussed

Rationing occurs in every healthcare system, Den Exter argues. "Treating physicians, hospitals, health insurers, and the government continually make decisions about who receives treatment, who does not, or who must wait. Primarily on the basis of medical need, but not exclusively."

"In times of scarcity, non-medical criteria also come into play, such as available financial resources and the patient's age," Den Exter explains. "These criteria influence decisions about, for example, whether to deploy expensive treatment methods. But they are generally not discussed with the patient." Physicians find that conversation uncomfortable, fearing it will undermine the doctor-patient relationship. The result is that patients are not fully informed, and in this way, the principle of informed consent, a central tenet of health law, is effectively bypassed.

Being honest about the trade-off

Rotterdam's health law scholars advocate a different approach: explicit rationing, based on socially recognised and politically established criteria. "Think of quality-adjusted life years (QALYs) or maximum costs per treatment. Such criteria must be tested through public debate and endorsed by policymakers, so that physicians can also transparently draw on them in conversations with patients."

Den Exter offers a concrete example of where things currently go wrong: "Suppose an expensive immunotherapy that extends the life of an eighty-year-old patient by only six months is not administered. That may be a defensible decision, provided the physician explains it and does not leave the patient uninformed about the real reason." Not every patient will be understanding, he acknowledges. "But that does not make honesty any less necessary."

The lecture at Kyiv Medical University is interrupted once more, this time by an external intrusion into the broadcast by, in Den Exter's words, "Russian trolls streaming explicit content live." When the connection is restored fifteen minutes later, the audience is barely fazed. "Apparently this happens more often, and they are used to this kind of disruption," Den Exter says.

Kyiv and Rotterdam: the same dilemma, but far greater pressure

In a country like Ukraine, the war intensifies pressure on scarce resources and makes rationing decisions more visible than ever. Yet legally speaking, patients are not without protection. "Ukraine has signed the Council of Europe's Oviedo Convention and recognises basic patient rights in national legislation. The European Convention on Human Rights also applies."

That will not change if Ukraine joins the European Union. "The European Court allows states broad discretion in organising their healthcare systems. EU membership would change little in that regard: the organisation of healthcare systems is a domestic matter, one that Brussels does not govern."

A physician in Ukraine and a physician in the Netherlands operate in vastly different worlds. Yet Den Exter argues that the legal and ethical questions they face are the same and that in both contexts, those questions too often go unanswered. The plea from Rotterdam's health law scholars is therefore clear: make the criteria explicit, subject them to public debate, and allow physicians to have an honest conversation with their patients on that basis.